On Friday, the North Carolina Supreme Court issued a ruling in the ongoing litigation over lethal injection in the Tarheel State. (Opinion available here.) To be clear, last week’s decision did not open the floodgates for executions to resume in North Carolina. The Court simply ruled that death-sentenced inmates cannot file a lawsuit in administrative court challenging the Council of State’s decision to approve the lethal injection protocol – inmates remain free to challenge the Council’s actions in other types of courts.

North Carolina is unique in that it requires the method of execution to first be mapped out by the Warden of Central Prison and then green-lighted by the Council of State, a group of executive branch elected officials. The issue in this case arose when the Council refused to hear from representatives for the inmates before approving the lethal injection protocol. The inmates alleged that in doing do, the Council did not follow proper procedure under the Administrative Procedure Act.

The Court’s decision here turned on whether the Council of State is subject to the APA. The Supreme Court ruled that because of the Council’s unique position in state government, the APA cannot be applied when the Council reviews a lethal injection protocol.

Although it ruled that the condemned have no right to contribute to the Council of State’s decision-making process, the Court specifically noted that the inmates’ other concerns about the protocol could be addressed by state and federal courts. What remains to be decided is the core issue of whether the lethal injection protocol in North Carolina complies with laws regarding cruel and unusual punishment.

As a practical matter, even if the protocol were to be approved by the courts, actually executing someone would require a drug of which there is a worldwide shortage at the moment. (More on that here and here.) The Court’s decision may have closed the door on administrative remedies, but it has not reopened the door to the execution chamber.

The North Carolina Supreme Court is hearing oral arguments this morning in a case involving five death row inmates and the Council of State. This is the next step in ongoing litigation between the five inmates – Jerry Conner, James Campbell, J.T. Thomas, Marcus Robinson, and Archie Billings – and the Council of State, the group charged with approving North Carolina’s lethal injection protocol. Briefs for the parties are here and here. The central question before the Court today is whether the Wake County Superior Court was wrong to find that the inmates cannot challenge the Council’s decision to change the procedure by which they would be executed.

It has been more than two years since anyone was executed in North Carolina. In the last few weeks, several legislative actions and court decisions have made it seem likely that executions will resume in the near future. What is really going on?

Medical Board

On May 1st, the North Carolina Supreme Court issued its decision in a lawsuit between the North Carolina Medical Board and the NC Department of Correction. The Medical Board, an agency responsible for licensing and regulation of doctors in North Carolina, had issued a policy stating that doctors cannot ethically participate in executions. The Department of Correction claimed that it was unable to find a doctor willing to assist with lethal injection, and that it was therefore unable to execute its inmates. The DOC sued, and the NCSC ruled that because the legislature has required physician participation in executions, it is not within the power of the Medical Board to sanction doctors for doing so.

Council of State

On May 13th, Wake County judge Donald Stephens issued a decision denying and dismissing the claims brought by several death row inmates against the Council of State, a body of elected officials responsible for, among other things, approving North Carolina’s lethal injection protocol. The inmates had alleged that the Council did not follow proper administrative procedure in approving the protocol. Judge Stephens found that the inmates did not have standing to challenge the Council’s decision, and that the Council’s approval was not subject to further review by any court.

Lethal Injection

Judge Stephens also issued an order setting a hearing during the June 1 session of court for oral argument on the remaining 8th Amendment issues in the inmates’ case. Both parties are expected to brief the impact of the US Supreme Court’s decision in Baze v. Rees on the question of whether the North Carolina lethal injection protocol is cruel and unusual.

Legislature

The Senate chamber of the North Carolina General Assembly voted this week to approve the Racial Justice Act, which would allow pre-trial defendants as well as death row inmates to challenge the decision to seek or impose the death penalty in their case if it was based on impermissible racial bias. The bill passed with an amendment which prohibited the Medical Board and other health care agencies from disciplining medical professionals involved in executions, removed the requirement that the Council of State approve the execution protocol, and mandated that executions cannot occur more than once every 30 days.

What Happens Now

There will be no appeal in the Medical Board litigation, but it is possible for the inmates to appeal Judge Stephens’ decision in the Council of State matter; some of Stephens’ findings were contrary to an earlier ruling by another judge. A specific date has not yet been set for the hearing on the 8th Amendment issues related to lethal injection. Finally, the House has yet to pass the Racial Justice Act, and if it does, any discrepancies between the House and Senate versions of the bill will need to be worked out.

It is hard to say exactly if or when executions will resume in North Carolina. Injunctions are still in place preventing the State from re-setting executions dates for the six residents of death row who were scheduled to be executed before the moratorium began.

What we do know is that our system of capital punishment remains imperfect. In the years we have been without executions, three innocent men were freed from death row, having served a combined 41 years and faced death for crimes they did not commit. Many of those who will face execution when the moratorium ends were convicted in an era when the standards for performance by defense counsel and fairness from prosecutors were far below what they are today. No one should be executed until all litigation is resolved and the known flaws with North Carolina’s death penalty have been remedied.

Judge Donald Stephens in Wake County has issued an order putting an end to the administrative law claims in the Council of State litigation. Judge Stephens has further ordered a hearing the week of June 1st to determine whether the US Supreme Court’s ruling in Baze v. Rees closes the question of whether the lethal injection procedure in North Carolina is unconstitutional.

If Stephens rules against the inmates at that hearing, executions could resume any time.

The North Carolina Supreme Court ruled last week that the N.C. Medical Board does not have the authority to discipline doctors who participate in executions. The decision was 4-3, with Justices Hudson, Timmons-Goodson, and Parker dissenting.

The decision does not mean that executions will begin again immediately, but it is a signal that executions could resume in the months to come.

Background

In January of 2007, the Medical Board issued a position statement prohibiting licensed physicians from assisting with lethal injection. The Department of Correction sued, claiming that this action made it impossible for them to find a doctor to participate in executions, as required by statute. Eventually the case worked its way up to the North Carolina Supreme Court, where arguments were heard in November of 2008.

This lawsuit is separate from the Council of State litigation, which pertains not to the participation of doctors but to the actual procedure used in lethal injection.

The Decision

Writing for the majority, Justice Brady found that to allow the Medical Board to discipline its members for participating in executions would “elevate the created Medical Board over the creator General Assembly.” Furthermore, the Court found that participation in executions does not rise to the level of violating the Hippocratic Oath because doctors are required merely to “monitor the essential bodily functions of the condemned inmate and [] notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering,” as opposed to personally administering the lethal drugs.

In her dissent, Justice Hudson found that the Medical Board had not exceeded its authority, and that if the Department of Correction wished to limit the Medical Board’s authority, the proper body to do so would be the legislature, not the courts.

What Happens Now

As mentioned above, the Medical Board lawsuit is distinct from the Council of State litigation, in which several inmates have challenged a change that was made to the lethal injection protocol without proper authorization. That case had stopped moving forward pending the resolution of the Medical Board matter. It is unclear when it will return to court. If the Council of State litigation fails, individual inmates will still have the opportunity to file their own claims. It is impossible to say exactly when executions will resume.

Additionally, there are two bills pending before the North Carolina General Assembly which will help address some of the fundamental problems with our capital punishment system. The first, the Racial Justice Act, would prohibit execution in cases where the death sentence was sought or obtained due to racial bias. The RJA is now before House Judiciary Committee I. You can contact committee chairwoman Deborah Ross or other members of the committee to voice your support for this bill.

The second bill would protect persons with severe mental disabilities, such as brain damage and paranoid schizophrenia, from execution in cases where their illness was a major factor underlying the crime. That bill is pending before Senate Judiciary Committee I, where you can contact Martin Nesbitt, among others.

Now that the legal battle over a doctor’s role in death row executions is nearing a conclusion, the issue of capital punishment in North Carolina is about to land in the laps of the 2009 General Assembly and Governor-elect Bev Perdue.

The state Supreme Court heard arguments Nov. 18 in a case between the N.C. Medical Board and the N.C. Department of Correction over the meaning of a nearly century-old law requiring that a doctor be “present” during an execution. The fight between the two agencies, which began more than two years ago, has resulted in a virtual moratorium on executions; the last one took place in August 2006. A decision in the case is expected within a few months, but however it comes out, lawmakers and Perdue will decide the fates of 162 men and women on death row.